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Secondary Sanctions:Aweapon out of Control?The International Legality Of, and European Responses To,Us Secondary Sanctions

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Secondary Sanctions:Aweapon out of Control?The International Legality Of, and European Responses To,Us Secondary Sanctions The British Yearbook of International Law VC The Author(s) 2020. Published by Oxford University Press. Available online at www.bybil.oxfordjournals.org This is an Open Access article distributed under the terms of the Creative Commons Attribution License (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted reuse, distribu- tion, and reproduction in any medium, provided the original work is properly cited. Downloaded from https://academic.oup.com/bybil/advance-article/doi/10.1093/bybil/braa007/5909823 by Ghent University user on 22 September 2020 doi:10.1093/bybil/braa007 ............................................................................ SECONDARY SANCTIONS:AWEAPON OUT OF CONTROL?THE INTERNATIONAL LEGALITY OF, AND EUROPEAN RESPONSES TO,US SECONDARY SANCTIONS By TOM RUYS* AND CEDRIC RYNGAERT** ABSTRACT The US is increasingly weaponizing economic sanctions to push through its foreign policy agenda. Making use of the centrality of the US in the global economy, it has imposed ‘secondary sanctions’ on foreign firms, which are forced to choose between trading with US sanctions targets or forfeiting ac- cess to the lucrative US market. In addition, the US has penalized foreign firms for breaching US sanctions legislation. In this contribution, it is argued that the international lawfulness of at least some secondary sanctions is doubtful in light of the customary international law of jurisdiction, as well as conventional international law (eg, WTO law). The lawfulness of these sanc- tions could be contested before various domestic and international judicial mechanisms, although each mechanism comes with its own limitations. To counter the adverse effects of secondary sanctions, third states and the EU can also make use of, and have already made use of, various non-judicial mechanisms, such as blocking statutes, special purpose vehicles to circumvent the reach of sanctions, or even countermeasures. The effectiveness of such mechanisms is, however, uncertain. Keywords: secondary sanctions, extraterritoriality, jurisdiction, international economic law, United States, European Union. * Professor of Public International Law, Ghent University, Ghent Rolin-Jaequemyns International Law Institute, [email protected]. ** Professor of Public International Law, Utrecht University, RENFORCE research programme, [email protected]. The authors would like to extend their gratitude to the European Central Bank (ECB), which has been so kind as to fund the research that informs this article through its Legal Research Programme (2019). Earlier drafts of this paper were presented during an expert seminar at Utrecht University, as well as during a meeting with the ECB Legal Service. The authors wish to thank the participants at both events, and the two anonymous reviewers, for their feedback. The paper was finalized in December 2019, with a minor update undertaken in May 2020. ...................................................................................... The British Yearbook of International Law (2020), Vol. 0 No. 0, 1–116 2 SECONDARY SANCTIONS: A WEAPON OUT OF CONTROL? Downloaded from https://academic.oup.com/bybil/advance-article/doi/10.1093/bybil/braa007/5909823 by Ghent University user on 22 September 2020 I. INTRODUCTION II. SECONDARY SANCTIONS:DEFINING THE CONCEPT III. THE LEGALITY OF SECONDARY SANCTIONS AND THE CUSTOMARY INTERNATIONAL LAW OF JURISDICTION (A) Secondary sanctions as access restrictions (B) Secondary sanctions going beyond access restrictions 1. US corporate control and the nationality principle 2. Prohibiting re-exportation of US items under the nationality principle 3. ‘Territorial’ use of the US financial system 4. A private cause of action for trafficking in US property: Reliance on passive personality? 5. Justifying secondary sanctions under the protective principle 6. Anti-evasion as a jurisdictional ground (C) Concluding observations IV. INTERNATIONAL LEGALITY OF SECONDARY SANCTIONS UNDER CONVENTIONAL LAW (A) International monetary law: Secondary sanctions as restrictions on payments (B) Secondary sanctions and WTO law 1. National treatment and most-favoured nation treatment 2. The prohibition of quantitative restrictions 3. Other potential breaches of WTO law (C) Potential breaches of bilateral instruments (D) Provisional conclusion (E) The security exception as an impenetrable line of defence for sanctioning states? 1. Security exceptions in bilateral investment treaties and friend- ship, commerce, and navigation treaties 2. Security exceptions in the WTO Agreements 3. Implications in the secondary sanctions context V. JUDICIAL CHALLENGES TO THE WIDE REACH OF US SECONDARY SANCTIONS (A) Judicial challenges before US courts (B) Judicial challenges at the international level 1. International dispute settlement on the basis of the WTO Agreements, friendship, commerce, and navigation treaties, or bilateral investment treaties 2. Circumventing the security exception: What alternatives? a. The advisory jurisdiction of the International Court of Justice b. Contentious litigation on the basis of the post-WWII Economic Cooperation Agreements VI. CHALLENGING US SECONDARY SANCTIONS THROUGH NON-JUDICIAL MEANS:THE EU BLOCKING STATUTE (A) The compliance prohibition 1. Compliance authorization 2. Direct enforcement under public law 3. Incidental enforcement by courts hearing contractual disputes 4. Deterrence SECONDARY SANCTIONS: A WEAPON OUT OF CONTROL? 3 Downloaded from https://academic.oup.com/bybil/advance-article/doi/10.1093/bybil/braa007/5909823 by Ghent University user on 22 September 2020 (B) Clawback (C) Directly challenging US secondary sanctions before European courts: The hurdle of state immunity (D) Concluding observations VII. CHALLENGING US SECONDARY SANCTIONS THROUGH NON-JUDICIAL MEANS:OTHER OPTIONS (A) Boosting the position of the euro (B) Facilitating international transactions by means of a special purpose vehicle (C) A European Office of Foreign Assets Control (D) Retaliatory measures VIII. CONCLUDING OBSERVATIONS I. INTRODUCTION Lately, the US has increasingly been ‘weaponizing’ economic sanctions to push through a foreign policy agenda.1 Making use of the centrality of the US in the global economy, it has forced foreign states and their firms to choose between halting trade with US sanctions targets or forfeiting access to the lucrative US market. In addition, the US has not shied away from slapping huge fines on foreign firms present in the US that route payments to sanctions targets through the US financial system.2 While US reliance on economic sanctions as a foreign policy tool is hardly novel,3 the US has recently made much more aggressive use of them to project US power abroad.4 Most eye-catching have been the re- instatement of US sanctions against Iran in 20185 and the strengthening of the Cuba boycott,6 however US sanctions are set to grow even more. Just as this article was finalized, for instance, President Trump signed into law an act imposing sanctions on persons involved in the construc- tion of the Nord Stream 2 gas pipeline, which will transport natural gas from Russia to the EU.7 1 See also E Geranmayeh and M Lafont Rapnouil, ‘Meeting the Challenge of Secondary Sanctions’ in M Leonard and J Shapiro (eds), Strategic Sovereignty: How Europe Can Regain the Capacity to Act (European Council on Foreign Relations 2019). Such sanctions go beyond multilat- erally agreed sanctions that are normally promulgated by the UN Security Council. 2 See Part II.B.3. 3 See, notably, Cuban Liberty and Democratic Solidarity (Libertad) Act 1996, 22 USC §§ 6021–91 (Helms-Burton Act) and Iran and Libya Sanctions Act 1996, 50 USC §§ 1701ff. 4 ‘Weapons of Mass Disruption: America is Deploying a New Economic Arsenal to Assert its Power’ The Economist (6 June 2019). 5 See, notably, ‘Reimposing Certain Sanctions with Respect to Iran’, Exec Order No 13,846, 83 Fed Reg 38,939 (7 August 2018). 6 Notably the reactivation of Title III of the Helms-Burton Act by President Trump in 2019: J Gabilondo, ‘No Oligarch Left Behind: Trump’s Title III Cuba Policy’ (Just Security, 3 June 2019) <www.justsecurity.org/64385/no-oligarch-left-behind-trumps-title-iii-cuba-policy/>. 7 Section 7503 of the National Defense Authorization Act for the Fiscal Year 2020, S.1790, 116th Congress (2019–2020) and Protecting Europe’s Energy Security Act of 2019, S.1441, 116th Congress (2019–2020), providing for a visa ban and asset freeze for persons involved in ‘the provi- sion of certain vessels for the construction of Russian energy export pipelines’. See for a critical view: S Sultoon, ‘US Congress Would Undermine Transatlantic Alliance with Nord Stream 2 4 SECONDARY SANCTIONS: A WEAPON OUT OF CONTROL? Downloaded from https://academic.oup.com/bybil/advance-article/doi/10.1093/bybil/braa007/5909823 by Ghent University user on 22 September 2020 US sanctions do not only govern economic relations between the US and the target state (‘primary sanctions’), but also relations between third states and target states (‘secondary sanctions’). These secondary sanctions do not just aim to coerce targeted states to change political course,8 but also third states. This contribution focuses on the latter type of sanctions. As secondary sanctions limit third states’ sovereignty to freely conduct their external economic relations with other states, they raise deep legitimacy questions. They also raise the question as to how third states could respond to mitigate, or even neutralize, the im- pact of secondary sanctions. This contribution
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